The e-tolling interdict – an interlude in the war

Legal experts are divided on whether or not the North Gauteng High Court infringed on the executive authority of government by interdicting the implementation of Gauteng’s e-tolling system.

However, they concur that the Constitutional Court will only have to consider whether government was “administratively rational” in opting for toll roads ahead of other funding models.

Government approached the Constitutional Court this week to have the interdict against e-tolling, which was granted to the Opposition to Urban Tolling Alliance (Outa) in April, set aside.

The hearing this week became, in part, a debate on the separation of powers between the executive, judiciary and the legislature.

Speaking to City Press, constitutional law professor Pierre de Vos of the University of Cape Town questioned the legality of high court Judge Bill Prinsloo’s interdict.

De Vos warned that the interdict “represents a far-reaching and even dangerous intervention by the judiciary in policy decisions taken by the executive”.

“I would not be surprised if the Constitutional Court overturns the high court decision,” he said.

Repeated delays in implementing the system, and an agreement between trade federation Cosatu and the ANC to postpone it because of the court action, suggested a lack of communication in government, De Vos said.

“The e-tolling saga suggests that in our government the left hand truly does not know what the right hand is doing.

“But because the real power in our country seems to lie at Luthuli Hous ... the government was forced to go along with a decision which might well have dire consequences for our economy.”

Koos Malan, constitutional law professor at the University of Pretoria, said the postponement that Cosatu and the ANC had agreed on just prior to the court injunction would cast “severe doubt on the arguments advanced in the Constitutional Court by government that postponements would have dire consequences”.

He said the challenge to e-tolling centred on whether or not the executive had followed all “administrative laws and procedures”.

University of Johannesburg law professor David Bilchitz said the Constitutional Court would not debate whether e-tolling was the best option or not.

“That’s the executive’s duty – but the government has to act rationally and justify the decisions it took and why these decisions don’t violate the Bill of Rights,” Bilchitz said.

“All exercises of public power must be rational in the eyes of the Constitutional Court.

“Generally, courts can’t intervene in any executive policy decision, but they can do so when government policy violates the rights of the public, where government is believed to have irrationally or arbitrarily taken a policy decision.

“Government has the discretion to make policies, but it needs to consult and convince the court that there was rationality and legality in the drafting of that policy.”

In court this week, deputy chief justice Dikgang Moseneke told David Unterhalter SC, representing the department of transport, that the executive should not expect the courts to always rule in government’s favour.

“Nothing is impervious to judicial review,” Moseneke said.

Unterhalter told the court that because of the interdict and the resulting lost fees, the government had been forced to allocate R270 million per month to the Gauteng freeway improvement project.

This money could instead have been used to fund education, health, infrastructure investment and poverty alleviation programmes.

But Outa’s lawyer, Alistair Franklin SC, argued that Treasury could either fund the debt from its contingency reserve of R5.8 billion or opt for other funding models, such as using a fuel levy to pay for the debt.

Unterhalter told the court that allowing the interdict to stand was “nothing short of a naked usurpation of executive powers by advocacy groups”.

The court reserved judgment in the case, which will go before the North Gauteng High Court in November for trial.

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